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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, November 16, 2010

Pepper-spray in the face may violate Fourth Amendment

'twas a bad night for Patrick Tracy, a fugitive from justice who was pulled over in bad weather and gave the police officer someone else's name. The officer ordered Tracy out of the car, and things went downhill from there, yielding a lawsuit alleging that the officer, Freshwater, used excessive force in restraining him.

The case is Tracy v. Freshwater, decided on October 14. When Tracy slipped on ice after exiting his car, the officer bopped him twice with a metal flashlight. When Tracy then ran toward the police car, Freshwater grabbed him, triggering a struggle, and smacked him again with the flashlight. Tracy then broke free and tried to run away, but he fell to the ground and Freshwater pounced on him and placed him in handcuffs as Tracy was screaming in pain and begged for mercy. Once Tracy was handcuffed, the officer pepper-sprayed him in the face.

So how does all of this shake out? Excessive force claims require the court to consider a series of factors, including the nature and severity of the crime leading to the arrest, whether the suspect posed an immediate threat to the officer, and whether he was actively resisting or evading arrest. The court looks at things from an objective viewpoint: under the facts known the officer, did he reasonably apply force? As the courts love to tell us, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment."

The Second Circuit (Hall, Livingston and Vitaliano [D.J.]), reverses summary judgment only on the pepper-spray claim, sending it to trial. The other force claims die on the vine. The Court notes that officer Freshwater was in an impossible position: late at night, bad weather, hand-to-hand struggle with a fugitive from justice who was acting furtively. Freshwater had to use force to restrain Tracy. The officer gets the benefit of the doubt on these claims.

But Tracy gets a trial on the pepper-spray claim. As Tracy testified that he was handcuffed and restrained when Freshwater sprayed his face, the jury could find that the pepper-spray lacked any reasonable basis. The Court notes, "infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects, and as such, its use constitutes a significant degree of force. Accordingly, a number of our sister circuits have made clear that it should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer." If the jury credits Tracy's testimony that he posed no threat to the officer when he was pepper-sprayed, he can win the case.

The Court also considers whether Tracy can sue for excessive force if his actions that night led to a resisting arrest conviction. Not a bad argument on the surface, except that courts recognize that the police sometimes use too much force even when the suspect is actively resisting arrest. The Court of Appeals doubts whether the criminal jury took up whether the use of pepper spray was reasonable under the circumstances, but it instructs the district court give this issue further thought on remand.